1. This is an appeal filed by the appellant aginst the judgment and decree passed by the Civil judge, Senior Divison, Alibag, dt, 30th Sept. 1981 in Special Civil Suit No. 26 of 1979 directing the appellant-original defendant 1 to pay an mount of Rs. 72, 176-49 Ps. Towards the claim made by the Maharashtra State Road Transport which the Ambassador car of the Corporation arising out of an accident out of an accident in which the ambassador car of the Corporation was Badly damaged and tow of its employees died on the spot and the third on suffered certain injuries. It is not disputed that on 15 th MaR. 1978 Sarvashri Shirodkar and Sawant were in the car belonging to the Corporation and Shri Muley was at the wheel. According to the plaintiff-Corporation, the car was being driven with due care and in a moderate speed obeying all the relevant rules and regulations. When it came near mile Stone No. 137/6 on Bombay............. in village Lohar Mal, there was a narrow culvert on the road. At that time the tanker owned by the appellant-defendant No. 1 Sharda Prasad Singh and driven by the defendant no. 2 was coming form the opposite direction and was proceeding to Bombay side. Seeing that the tanker was coming in an excessive and uncontrollable speed, the driver of the staff car swerved it to the extreme left side of the road and halted it to enable the tanker to pass through theculvery. However, as the tanker was being driven in a rash and negligent manner, the driver could not control it. As a result of it, the tanker dashed against off -side front portion of the staff car with a great force resulting into the staff car being dragged for about 15 feet from the culvert. The tanker capsized on the eastern side of the road with its head towards Ratnagiri side. The staff car was dragged backward for about 15 feet diagonally across the road and ultimately capsized on the same side of the road with its head towards Bombay side. Due to the impact and dragging of the staff car, the two occupants namely Shirodkar and Muley died on the spot and the third occupant shri Sawnt sustained injuries. According to the plaintiff, the accident took place because the defendant 2, the driver fo the tanker drove it in a rich and negligent manner. It was the case of the plaintiff that as a result of this accident the staff car was smashed and the plaintiff was required to incur an expenditure of Rs. 23,000/- for its repairs. Since the staff car remained idle for about 10 months, the plaintiff was put to loss kto the extent of Rs. 10,000/- The plaintiff had also to payaSum of Rs. 23,100/- to the dependants of shri Shirodkar and Shri Muley under the provisions of the Workmen's Compensation Act. The plaintiff was required to grant leave to Shri Sawant for a period of 103 days on account of his disability due to the multiple injuries sustained by him in the accident and thereby incurred expenses to the extent of Rs. 1.476-49 Ps. Thus the plaintiff had claimed in the suit Rs. 33,000/- by way kof damages and idle charges qua the stafff car and Rs. 47,678/- paid to the dependants of the deceased under the provisions of Workmen's Compensation Act.
2. The defendants denied the various allegations made in the plaint. Defendant No. 1 admitted that he is the owner of the tanker and the defendant 2 was thedriver. They also admitted that defendant 3 is the Insurance Company with which the tanker involved in the accident was insured at the relevant time. However, according to the defendants, the tanker was being driven at a moderate speed with due care and elution as per the road. However, it waste driver of the staff car who was driving the car rashly and knegligently. Thus the accident took place because of the rash and negligent driving of Shri Muley the driver of the staff car. Therefore, the claim made by the plaintiff was denied in toto. On the basis of these pleadings, the learned judge of the trial Court framed necessary issues. In support of the suit, plaintiff examined Pradip Sawant on of the occupants in the car and who was also injured, Vijaykumar Saidanna Vigampalli who proves the repair charges of the staff car, Panduang vithal Shrigaonkar the witness to the spot panchanama and Anant Narayan Dharap who proves the payment made to Sanghi Motors Bombay Limited towards the repair charges, and amount paid to the dependants of Shri Muley and Shri Shirodkar under the provisions of the workment's Compensation Act. On behalf of the defendants Shri Jos the driver of the tanker is examined. After appreciating all the evidence on record, the learned Judge of the trial Court came to the conclusion that it was the driver of the tanker who was driving the vehicle rashly and negligently. He negatived the contention raised by the defendants. Having recorded a finding that it was the driver of the tanker who was responsible for the accident,the learned judge allowed the plaintiff's claim to the car. Rs.23,000/- towards the damage caused to the car. Rs. 1500/- towards the damages for the car remaining idle for 10 months and for Rs. 46,200/- towards the amount paid by the plaintiff to the dependants of deceased Shri Shriodkar and for Rs. 1,476-49 Ps. Towards the disability leave granted to the injured Shri Sawant. Thus the claim made by the plaintiff was allowed to the tune of Rs. 72,176-49 Ps. However, the reside judge restricted the liability of defendant 3 the Insurance Company to the extent of Rs. 50,000/-. Only . As already observed, it is this judgment and decree which are challenged in the present appeal by the owner of the tanker, the appellant.
3. Shri Patel, the learned counsel for the appellant, contended before us that the learned Judge of the trial Court committed an error in accepting the evidence of Pradip sawant the wines for the plaintiff. According to the learned counsel the said evidence is inconsistent with the pleadings of the parties. The learned Judge also committed an error in basing his finding on the final position of the vehicle as found after the accident. According to Shri Patel, the position of the vehicle as found after the accident is not a guide to decide as to who was driving the vehicle in a rash and negligent manner nor wheel marks on the roadare relevant for deciding the said question. Ultimately, there is word against word so far as the evidence relating to the rash and negligent driving is concerned. Pradip Sawant P. W. 1 has stated that the tanker driver was at fault whereas Shri Jos the driver of the tanker has stated in his deposition that it was the deceased. Muley who was responsible for the accident. According to Shri. Patel, having regard to the circumstances and facts brought on record this is a case where it could be safely said that both the drivers were equally responsible for the accident. It was a case on contributory negligence and therefore the learned Judge of the trial Court committed an error in holding that the diver of the tanker alone was responsible for the accident. He also contended that it is not proved that the amount paid to the dependants of Shri Shriodkar and Shri Muley were paid under the provisions of the Workmen's Compensation Act nor it is proved that an expenditure of Rs. 23,000/- was incurred for the repairs of the staff car. Shri Patel also contended that in any case the learned Judge committed an error in restricting the liability of the Insurance Company to Rs. 50,000/- only when under the contract of Insurance defendant 3 was liable to pay Rs. 50,000/- towards the damage to the property to the third party. So far as the compensation payable for the death of Shri Shriodkar and Shri Muley is concerned, on each count the Insurance Company was liable to pay compensation to the extent of Rs. 50,000/- in view of the decision of the Supreme Court in Motor Owner's Insurance Co. Ltd. v. Jadavji Keshavji that the Civil Court had no jurisdiction toi entertain the suit in view of the provisions of S. 110F of the Motor Vehicles Act.
4. On the other hand, it is contented by Shri Hegde, the learned counsel appearing for the respondent. 1 ,the after appreciating all the evidence kon record. The learned Judge of the trial Court has rightly come to the conclusion that is was the driver of the tanker who was solely responsible for the accident. The learned Judge was also right in accepting the evidence of the plaintiff that an amount of Rs. 46,200/- was paid to the dependants of deceased Shri Shriodkar and Shri Muley under the provisions of Workmen's Compensation Act and the plaintiff has proved that it had paid Rs. 23,000/- to the Sanghi Motors Limited towards the repairs of the car. However, he supported the contention of Shri Patel so far as the liability of the Insurance Company is concerned.
5. Shri Kudrolli, the learned counsel appearing for the Insurance Company, contended before us that so far as the liability of Insurance Company is conserned, underrr the provisions of S. 96(2) read with S. 95 (2) (d) of the Motor Vehicles Act, the said liability's restricted to Rs.s 2,000/- only and therefore the learned Judge of the trial Court was right in restricting the trial Court was right in restricting the total liability to Rs. 50,000/- only so far as the Insurance Company in concerned.
6. With the assistance of the learned counsel, appearing for both the sides, we have gone through the entire evidence on record. P. W. 1 Pradip Sawant was the occupant of the car. He has stated in his evidence that the staff car was proceeding byl the left side of the road and there was a driver of the staff car lownered the speed of the car. At that time the tanker was direction and it dashed against the car on the driver's side. The car was pushed back and he does not know what happened thereafter since he lost the consciousness.He has then spoken about the injuries sustained by him. Nothing useful has been brought in his cross examination. In the cross-examination here-affirmed that he saw the culvert and the tanker coming from the opposite directin, when the car was at a distance of 500 feet form the culvert. The collision took place when the was car was at a distance of 10 to 12-feet from the culvert. He also stated that the car was on the left side. Then he has spoken about the amount received by him towards the sick leave. The panch witness P. W. 3 Shrigaonkar has proved the panchanama. He has stated in the car deposition that the driver's side of the car was pressed and botherr the vehicles were lying on the side of the road to the east of the cause-way ond there were tyre marks on the Knccha road. Thus the evidence of Sawant get substantial corroboratingg in the evidence of this witness and the recitals in the panchannama. On the other hand, the defendant is relying upon the evidence of tanker driver, shri Jos. He was coming fork Bombay and going towards Ratnagiri side. In this process the car came to the wrong side of the road and dashed against the tanker. He did not see the car coming from thr opposite direction as the truck was in front of his oil tanker. He did admit that the oil tanker turned turtle. In the cross-examination he was confronted with his earlier statement made before the Criminal Court wherein he has stated that he has not driving the tanker at all. Thus in substance the driver of the tanker has taken different stand, one before the Criminal Court and another before the Civil Court. If his evidence is read and considered with the evidence of the panch witness and the recitals in the panchannama, then it is quite obvious that so far as the actual collision is concerned. However, the version given by Shri Sawant is not only consistent but is also supported by the evidence of the panch witness and recitals in the panchannama. In view of this, we are wholly satisfied that the learned Judge of the Court was right in accepting the testimony of Shri Sawant and rejecting the evidence of Shri Jos. Since. We generally agree with the threee appreciation of the evidence as well as the finding recorded by the learned judge of the trail Court in that learned Judge of the trial Court in the behalf, it is not necessary to reproduce the whole evidence or the reasons in support of the said finding over again. In our view, the learned Judge of the trial Court was wholly right in holding that the collision took place because of the negligence of the tanker driver and driver of the car Shri Muley was in no way responsible for the collision. Once this finding is recorder then the argument advanced by Shri Patel that this was a case of contributory negligence cannot be accepted.
7. So far as the proof of the claim is concerned, Shri Sawant has stated in his deposition about the amount received by him towards the sick leave. P. W. 2 - Vijaykumar has stated in his evidence that the M. S. R. T. C. has paid Rs. 23,000/- to Sanghi Motors Bombay Limited, towards the repair charges. He has also produced on record the bills received from the Sanghi Motors. He has also proved the claim towards idle charges. P. W. 4 - Anant Dharap has proved the payment made to the dependants of deceased Shri Muley and Shri Shirodkar. He has given the details kof payment including the check number etc. He has stated in his deposition that his amount was paid under the provisions of workmen's Compensation aAct. The evidence of these witnesses is not seriously challenged in the cross-examination. In these circumstances, we have no hesitation in coming to the conclusion that the plaintiff-Corporation has proved the claim made in the suit and therefore the decree passed by the trial kCourt in that behalf is wholly justified. Appellant, tha since the claim made in this suit was towards the damage to the same could have been preferred under S. 110 (1) read with s. 110-A(1)(a) of the Motor Vehicles Act and therefore the jurisdiction of the Civil Court was wholly barred by s. 110-F of the said Act. According to him, the learned Judge of the trail Court committed an error in overruling the preliminary objection raised in that behalf vide his order dated 31st Dec. 1980. It is not possible fours to accept this contention of Shri Patel. We are dealing with a case wherein the plaintiff has filed a suit also for the recover of the amount paid by it to to the dependants of deceased Shri Shirodkar and Shri Muley under the provisions of Workment's Compensation Act. 23,000/- towards damages to its own property I, e. to the staff car. Therefore,the suit filed by the plaintiff is a composite one. under S. 13 of the Workment's Compensation Act, the plaintiff-Corporation was entitled to recover the mount paid by it to the dependants of deceased Shri Shirodkar and Shri Muley. It is not disputed that the plaintiff-Corporation could not have much such claim under S. 110 (1) of the Motor Vehicles Act, However, in view of the amended provisions of S. 110-A (1) (a), since the claim made in that behalf was for Rs. 23,000/- I, e. for amore than Rs. 2000/- the plaintiff had an optionnnn either to institute the claim before the Motor Accidents Claims Tribunal or to refer it to the Civil Court for adjudication. Once the optionnnn is exercised and the claim is referred to the Civil Court, then under the said proviso the Motor Accidents Claims Tribunal has no jurisdiction to entertain any question relating to such claim. The provisions of S. 110-F of the Act will, therefore, not apply to such a claim. We are dealing with a cse where the major part of the claim is obviously beyond the jurisdiction of the making a claim, which is not within the jurisdiction of the Motor Accidents Claims Tribunal, the plaintiff has also made a claim towards thedamages to its own property, which could have been instituted under S. 110(1) read with S. 110-(A) (1) (a) of the Act. However, to that part of the calim, the proviso to S. 110(1) squarely applies .It was a claim for compensation respect of the damage to property exceeding Rs. 2000/-. Therefore, the plaintiff had an optionnn either to institute the said claim before the Motor Accidents Claims Tribunal to the Civil Court as such is contemplated by any of the provisions of the Motor Vehicles Act. Therefore, the word 'refer' only means to submit for determination or to file a claim. under the proviso the plaintiff had on optionnnn either to lodge or file a claim before the Motor Accidents Claims Tribunal or before the Civil Court. the plaintiff has chosen to institute the claim before the Civil Court for adjudication and in our opinion rightly. The claim made by the plaintiff in the suit covers the claim for recover of the amount paid by it to the dependants of the deceased under, the provisions of the Workmen's compensationAct. This claim was wholly outside the provisions of S. 110 (1) of the Act. For proving its claim towards the damage to the property or for the amount paid under the Workment's Compensation Act, the plaintiff was obliged to prove that the accident took place due to the rash and negligent driving of the tanker driver. This issue is common to both the claims, namely the claim made for the recover of the amount paid under the provisions of Workmen's Compensation act as well as the claim towards the damage to the property. Therefore, plaintiff rightly exercised the optionnnn to institute whole of the claim before the civil court for adjudication. Since the present case is covered by proviso to S. 110 (1) of the Act, the suit is not barred by s. 110-F of the Act, and the trial Court had jurisdiction to entertain and decide the suit.
8. However, we find much substance in the contention raised by Shri Patel that the learned Judge of the trial Court committed an error in restricting the liability of the defendant 3 the Insurance Company to Rs. 50,000/- only. The amount claimed in the sut towards the compensation paid to the dependants of the two deceased was Rs. 46,200/- which was obviously below Rs. 50,000/-. Even otherwise in view kof the decision of the Supreme Court in Motor Owners, Insurance Co. Ltd. v. Jadavji Keshavji Modi : 1SCR860 , the limit of compensation of Rs. 50,000/- will extend to each of the deceased. It is an admitted position that under the contract of Insurance so far as the risk to the same was cover up to Rs.50,00/- The claim in suit for the damage to the property is onlyRs. 23,000/- which is much below the risk covered under the Insurance Policy. However, it was contended by Shri Kudrolli, the learned counsel for defendant No. 3 the Insurance Company, that is view of the death or injury namely Rs. 48,200/- then the total liability of the Insurance company will come to Rs. 48,200/- only.. If an amount of Rs. 1,476-49 Ps. Paid to injured sawant is added it, still the liability will not exceed Rs. 50,000/- and therefore the trial Court was wholly right in restricting the liability of the liability of the Insurance Company to Rs. to Rs.50.00/- only. It is also contended by shri Kudrolli that the plaintiff had filed the present suit before the Civil Court and not before the Motor Accidents. Claims Tribunal. In this view of the matter the liability of the Insurance Company for the damages to the property of the third party cannot exceed the statutory limit I, e. Rs. 2,000/- It is not possible for us to accept this contention of Shri Kudrolli As already observed after the amendment and introduction of S. 110-A (1) (a) the owner of the property can also file an applicant for compensation under S. 1210 (1) of the Act. Admittedly the plaintiff Corporation was the third party ;and in the ........ was claiming compensation for damage to its own property. Such a claim could have been lodged under S. 110 (1) of the Act. If his is so then the proviso to S. 110 (1) will proviso to S. 110 (1) of the Act, the Corporation has exercised its option to prefer the claim before the Civil Court. Therefore , in substance it is a claim, covered by the Motor Vehicles Act. Though the forum chosen is the Civil Court, from the bare reading of ss. 110, it kis quite clear that if the Motor Accidents Claims Tribunal are not constituted by the Government under S. 110 of the Act, the persons concerned can institute their claim before the Civil Court. In that case, it cannot bne said though right exists there is no forum available. Therefore, nothing depends upon the forum chosen. The claim for compensation made towards the damage to the property arose out of the accident to the staff car belonging to the corporation . Admittedly so far as the third party property is concerned under the Insurance Policy, the risk covered under the Insurance Policy, the risk covered is up to Rs. 50,000/- S. 96 (2) read with S. 95 (2) (d) only prescribes statutory compulsion.It does not follow from that that it is not open to an insurer to cover the third party property risk in excess of Rs.. 2000/- there is no bar or embargo of covering the higher risk under the Policy of Insurance,As observed by the supreme Court in : 3SCR372 , Pushpabai v. Ranjit Ginning and Pressing Co, (p) Ltd., the insurer is always at liberty to take policies covering risks which are not covered by compulsory Insurance. Thus the 'Act Liability is the Act, which can prohibit the Insurance Company from expending limits of its liability by a contract of Insurance It is well known that whenever higher risk is covered the insurance company gets higher or additional premium. S.96 compels the insurer to satisfy the judgment against the person insured in respect of third party. It places an oblilgation on the insurer to pay the amount awarded against the owner of the vehicle, subject to certain conditions. The first condition is that there should e a judgment or decree against the person insured. The second condition is that the judgment must be in respect of liability covered by the policy. If these conditions are satisfied, then the Insurance Company is bound to pay the amount decreed. In our view. This position is made amply clear by lsub-sec. (5) of S. 95 itself; which lays down that, notwithstanding anything elsewhere contained in any law, a person issuing policy of insurance under the said section, shall bbe liable to indemnify the person, or classes or persons specified in the policy in respect of any liability which the policy purposes to cover in the case of that person or those classes or persons. If the argument advanced by Shri Kudrolli is accepted then the very basis of contract of indemnity will lost its efficacy.
9. We are fortified in this view by the division Bench decision of Gujarat High court in United India fire & General Insurance Co. Ltd. Ahmedabad v. Minaxiben Harischandra Joshi AIR 2979 Guj 1208, and in Bobanji Rustomji ginwala v. Lbrahim Vali Master : AIR1982Guj112 . The Gujarat High Court in United India Fire and General Insurance Co. Ltd. v. Minaxiben Harishchandra Joshi has held that it is always does so for the benefit of theinsured. Therefore, if an insured is held liableto pay the claimants more than the statutory limit precribed by S. 95, the Company is liable to make good the additional liability within the overall limit of its contractual liability. Similar view is taken by Punjab and Haryana High Court in Hans Raj v. sukhdev Singh 1982 Acc. C. Andhra Pradesh High Court in Srisailam Devastanam v. Bhawani Pramilamma AIR 1933 A. P. 297.
10. In this view of the matter, in the present case the defendant 3-Insurance Company is liable to pay the decretal amount which comes to Rs. 72, 176-49 Ps. Together with interest and the costs.
11. In the result, therefore, appeal is partly allowed. The order passed by the trial court regarding the liability of the defendant 3 - Insurance Company is modified and it is held that the Insurance Company is also liable for the whole of the decretal amount which includes costs of the suit and the future interest on Rs. 72,1276-49 Ps.
12. However, in the circumstances of the case, there will be no order as to costs of this appeal.
13. Appeal partly allowed.